And you thought that whole iPhone 4G/HD
saga was over? CNET News has just posted excerpts from an
affidavit for the search warrant used to raid Gizmodo editor Jason Chen's house.

If you may recall, an Apple engineer
lost a prototype iPhone in a bar, a man by the name of Brian Hogan
found the phone, and an unnamed third person then sold the phone to
Gizmodo for $5,000. Once Gizmodo came into possession
of the phone, the biggest
tech news story of 2010 was upon us.

We are now learning, thanks to CNET,
that none other than the big man himself, Steve Jobs, contacted Brian
Lam and requested the return of the iPhone prototype. Steve Jobs is
known to get rather upset and tyrannical with his own employees, so
one must wonder how that conversation went.

It was
also revealed that Apple pushed police to investigate the case. CNETprovides
this excerpt from the affidavit:

Sewell told me
that after Gizmodo.com released its story regarding the iPhone
prototype on or about 4/19/2010, Steve Jobs (Apple CEO) contacted the
editor of Gizmodo.com, Brian Lam. Jobs requested that Lam return the
phone to Apple. Lam responded via the e-mail address...that he would
return the iPhone on the condition that Apple provided him with a
letter stating the iPhone belonged to Apple.

According to CNET, even after
Steve Jobs contacted Brian Lam requesting the return of the iPhone,
he still
wasn't satisfied. In fact, Lam went on to respond stating that he
wanted "confirmation that it is real, from Apple, officially."

Lam continued, stating, "Right
now, we have nothing to lose. The thing is, Apple PR has been cold to
us lately. It affected my ability to do my job right at iPad launch.
So we had to go outside and find our stories like this one, very
aggressively."

I guess it depends who you're talking about. Hogan is in hot water for sure, Warner likewise for evidence tampering. Chen on the other is not. On 499c(b)(3) the people have to prove that a phone is a trade secret, by definition a trade secret cannot be temporary and cannot be easily discovered EVER. This "secret" would end the second Apple released the specs on the phone (making it both temporary and easily discovered). I think it's a real uphill battle for this(it's certainly confidential but that does not make it a trade secret which has special protections in the law). On 594 (b)(4), they have to prove Chen did the damage beyond a reasonable doubt AND they have to show it was done with malice and forethought. For 496 (a) they have to show Chen desired to deprive Apple from the item either permanently or for profit. Here the area is now a bit murkier. The e-mail could be interpreted as merely a request for true authentication of ownership or a demand for a reward (which implies a desire to deprive Apple from its property until the demands are met). One of the 800 pound gorillas in the room is Apples failure to report the loss/theft for over a month. This suggests the phone itself did not bother them as much as the software which they remotely wiped. It's a very good defense argument since by the time Chen got it the phone was non-functional as stated by Hogan to the police. The felony status is clearly determined as the retail value of the phone ($400). There is also no mention what so ever of Chen being a member of the press in the warrant. It will be interesting how this plays out, IF the courts declare that an item can in and of itself be a trade secret then say goodbye to ALL leaks or confidential insider information in the press. 496 is the only potential real problem and here it's going to be hard to prove beyond a reasonable doubt.

"So, I think the same thing of the music industry. They can't say that they're losing money, you know what I'm saying. They just probably don't have the same surplus that they had." -- Wu-Tang Clan founder RZA